My only reaction would be to advise anyone with such a business plan to consult not only their own lawyer, but the attorney general of the state in which they planned to operate.
I said this only to point out that the practice was legal until 1961, when Mapp v. Ohio was decided.
It’s hard for me to condem the entirety of US history prior to 1961 as “against the spirit of any fair and just society.”
I’m assuming this was sarcastic? My post you quoted was not, if my post was unclear its because I didn’t want to run on. You stated in your own post that evidence obtained illegally may be used in court, just not against the person(s) whose rights were violated in the process of obtaining it. I’m sorry if there was any unnecessary confusion.
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I wasn’t implying the entirety of US history is “against the spirit of any fair and just society”, just that using illegally obtained evidence in a court of law is. Not every legal case prior to 1961 involved evidence obtained illegally. Obviously you believe this loophole is fair, I see it as a gross invasion of privacy.
My part in this discussion appears to have veered off topic, so my apologies to the OP and if I make another post it will be closer to the original topic.
It’s not as great a tangent as you might think, since you seem to be arguing about the use of the exclusionary rule itself.
I just feel like pointing out that the exclusionary rule is not something that’s immediately obvious. The Fourth Amendment prohibits unreasonable searches, and requires that a warrant to search must be based upon probable cause. It was ratified in 1971.
But it wasn’t until 1923, in Weeks v. US, that the federal government was prohibted from using evidence obtained in violation of that command against a criminal accused. And as I mentioned, it wasn’t until 1961 that this same exclusion was applied to state prosecutions.
I mention this only to suggest that your sense of fairness and justice might be influenced by those norms, which you may regard as obvious and necessary… but they were not always so.
So on one hand you are arguing that novel arguments in this domain are a waste of time, and on the other you note that our current understanding is based on what were then novel arguments being accepted not hat long ago.
There is a principled distinction to be drawn between the novel arguments that you are proposing and the novel arguments I mention above.
For example, I bitch and moan about the DC Circuit crafting a new theory of privacy, but I fully recognize that it’s the kind of novel theory which may well carry the day and become law.
The arguments you have advanced are not similarly situated.
Nonetheless, the attorneys involved didn’t simply come up with their theory fully baked on the way to Court that day, and there is no reason to believe that some regular Joe on the street didn’t come up with the raw ingredients at some time prior.
I don’t claim my idea is fully baked (I know the pun that is headed my way for using that figure of speech ) , but maybe they are awaiting just the right set of circumstances where it happens that the abstract taking is, well, less abstract, and a court that is ready to hear something like that.
IANAL, but I suppose that is how novel arguments usually work. Maybe that day comes when a verify-no-gps service is available, common, and turning up a lot of stuff and the cost in the market place becomes less abstract.
BTW, related topic. Do officers need a warrant to monitor the gps signal emitted by one’s phone (if there is one)? Or to request it from a phone company? How are these the same or different from the case involving placing the GPS on the car, in the law’s eyes?
I’m trying to come with a way to explain the difference without resorting to the famous aphorism from Potter Stewart as regards hard-core pornography: can’t define it, but I know it when I see it.
In this instance, the best I can do is to say that typically these novel interpretations don’t come out of nowhere. A seminal case from the Supreme Court can typically point to something, some precedents, that lean in the direction being established. Or they can point to some prophylactic measure which in in widespread need and which will be provided by their new ruling. In short, there’s always an undercurrent, a precursor.
With respect to the takings theory you’re advocating, there isn’t.
Now, I grant that these cases could be the beginning of that very undercurrent. Except that no one on these cases argued the takings issue. So we’re left with the claim that it may happen in some future case. I suppose that’s true, but remarkably unhelpful as regards predictive value for the state of the law today.
If I were still practicing criminal law, in other words, and a client came to me saying he’d just been indicted based on information derived from a surreptitiously-placed GPS device, sans warrant, I do not think I’d tell him, “Not to worry, my good man. I have a Fifth Amendment takings defense ready to roll; tell your wife she can keep planning the family Chrismas party.”
Really interesting question.
They don’t need a warrant. But they do need a court order. Under 18 USC § 2703(c), they can request a court order “…if the governmental entity [requesting the information] offers specific and articulable facts showing that there are reasonable grounds to believe that the contents of a wire or electronic communication, or the records or other information sought, are relevant and material to an ongoing criminal investigation.”
Notice that a warrant requires probable cause. This standard, called ‘reasonable suspicion’ in shorthand, is a level of suspicion below that of probable cause but above a mere hunch or unparticularized suspicion.
Note that this is simply a law, not a constitutional provision.
Everyone needs a softball every now and then to keep things sporting
I understand this.
Exactly! That there is discussion beginning in the public, around the notion that this offends our sense of justice somehow, is probably how it gets started.
As there are more and more cases, and people get ensnared and convicted, more and more will be offended, and things will work their way through and change will happen. I can’t think Miranda was the first guy ever who regretted talking when he hadn’t been explicitly told his rights.
It takes time and a many cases to establish a pattern. But in this case, probably most people aren’t even aware cops are doing this yet, let alone the legal implications. So maybe we are talking about two different things - what the law is now, and whether or not it is going to remain that way forever.
Maybe, but if the evidence is collected in a novel way, aren’t you ethically bound to explore and probe the edges of the novelty for the purposes of a complete defense, rather than simply accept it? Maybe you don’t win, but you start to build a record, and someone else later might pick up and expand on it.
And if it is a jury trial, even if the evidence is accepted, your arguing about the circumstances to the jury might be persuasive regarding their sense of justice too. Unless you have a super strong case otherwise, I’d consider rolling that dice.
OK. so let’s leave aside the nature of the judicial oversight in practice for now. But at least there is some.
So what you are saying is, if the officers observe me placing a gps under my own car, they need some level of court approval to monitor it, but none at all to walk up to my car the instant I walk away and place their own identical gps right next to mine, and monitor it?
And that is where the offense to American sense of justice occurs. What makes one identical system different in the eyes of the law from the other when they are hanging there attached by magnets or straps, from the other right next to it?
Especially, when as you noted previously, there is nothing preventing the car owner from removing the one that is not his?
What legal principle makes the data from one accessible to the police without judicial oversight, and the other not?
Seriously, that’s just it. There is no constitutional prohibition to the police getting the data from either GPS; the Constitution is equally unoffended by either method.
But Congress decided to pass a law to better protect information in certain cases. The result of that decision was 18 USC § 2703.
Congress should pass another law, to regulate GPS surveillance.
I didn’t ask for anything constitutional, or a smug circular answer.
I asked what is the principle that requires the police to the judicial oversight for the radio emitted data from one device, and not for the identical and simultaneous data from an identical device inches away.
What principle distinguishes the two in the eyes of the law?
For that matter, what is the principle that requires them to be distinguished at all?
I’m not trying to be smug or circular. You asked what principle distinguishes the two, and my answer is: “The text of 18 USC § 2703.”
The legislature chose to permit one and not permit the other. That’s all there is to it. It’s as though you asked why the sheriff’s deputies wear five-pointed stars as opposed to six-pointed stars – what legal principle distinguishes the two?
None. Someone just made a choice. That choice now has the force of law. They could have required probable cause, they could have included police-owned GPS systems, but they didn’t. That’s it.
Why do you seem to cling to the notion that there must be some overarching principle in play here?
Because the law didn’t suddenly appear in the code out of the blue with no history, no debate, with no reason for its proposal and existence.
And because as you noted earlier, there is extensive history, and ongoing debate regarding the nature of the ownership and admissibility of data in many guises. This is an active debate in American society and you know it.
You already tried to have it both ways once before in this thread. You can’t have it both ways this time either, on the one hand saying the Constitution reserves the power to the people, blah blah blah etc. and on the other saying a law simply appeared out of the blue, and so we must accept that as the way it is without asking why.
You can ask why, of course. And the legislature is answerable to you.
I’m sure they had their reasons. I have no idea what they were.
But you seem to be hinting at the idea that if the legislature can’t produce a sufficiently convincing explanation of why they chose to require judicial oversight in (A) but not in (B) then their actions lacks legitimacy somehow.
But that’s not so. The legislature can choose to require judicial oversight for GPS systems owned by people and not for police-owned GPS systems simple because they forgot to include police-owned GPS systems in their draft.
So that is fine. When someone asks for a principle, and you don’t know, then either say you don’t know, or don’t answer at all. don’t say: “it is because it is”.
Sorry, you are not turning this back on me. You tried that earlier and it didn’t work, and it won’t work now counselor I suggest no such thing, I asked you what the principle was,that is all. If you want to speak for me, you are free to license that right from me.
But stop attributing nonsense opinions to me. If you want to know what I think, then simply ask instead of guessing, because your guessing doesn’t seem to accurate.
Making up such hypotheticals as “The legislature forgot” (the “Steve Martin Principle”) is BS. Just as you said you can smell hypos that don’t make sense, I sense this one is borne of desperation. You know full well that this is a very active area of law, and public concern, the collection and interpretation of data in criminal investigations. If you want to allege that the legislative history is that the entire body just “forgot” to include something, well, I’d like to see you demonstrate the actual evidence for that.
And you might say you can’t prove a negative, which is why you shouldn’t expect to get away with such arguments. And besides, with the “forgot” argument, t is tantamount to saying, had they been reminded, they would have legislated otherwise, which is further tantamount to saying that there is an underlying principle against the collection of data as described, only that the legislature “forgot” to apply it.
In which case, I rephrase my question - what is the underlying principle that the legislature meant to apply, but forgot to, in its collective frenzy of wisdom?
And considering the legislature is made up of multiple individuals, any two of which may have had different ideas, I do not believe your question can be answered.
So nothing can ever be learned about anything that happens in any legislature? No one ever shares any information on reasons or positions, they just leave a trail of seemingly disconnected votes for the public to live by?
Or maybe only this particular legislative act was created by the most opaque process imaginable, such that how it came to be is entirely unknowable?
People make speeches. But not all legislators make speeches or take positions on all bills, so no: you cannot determine what every single person who voted ‘yes’ was thinking, and why the bill gained his support.
